Opinion
G056469
10-17-2019
THE PEOPLE, Plaintiff and Respondent, v. ALDO DIAZ, Defendant and Appellant.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15WF2339) OPINION Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed with directions. Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted defendant Aldo Diaz of possessing methamphetamine for sale (Health & Saf. Code, § 11378), and in a bifurcated proceeding, the court found Diaz had three prior "strike" convictions as defined under the "Three Strikes" law. (Pen. Code, §§ 667, subds. (d), (e)(2)(A), 1170.12, subds. (b), (c)(2)(A).) Diaz was sentenced to state prison for four years (two-year midterm doubled under the Three Strikes law) and ordered to pay various fines and fees including a $150 drug program fee (§ 11372.7) "plus penalty assessment" and a $50 lab analysis fee (§ 11372.5) "plus penalty assessment
All further statutory references are to the Health and Safety Code unless otherwise stated.
Sentence enhancements alleged under section 11370.2, subdivision (c), for prior drug-related convictions were dismissed following the enactment of Senate Bill No. 180 (2017-2018 Reg. Sess) (Stats. 2017, ch. 677, § 1).
Diaz raises two issues on appeal. First, he asks us to independently review an in camera hearing conducted by the court and determine whether the court erred in denying his motions to disclose the identity of a confidential informant and to quash and traverse the search warrant. Second, he contends the court erred by assessing penalties on the drug program and lab analysis fees because they are not fines within the meaning of Penal Code section 1464, subdivision (a)(1), and Government Code section 76000, subdivision (a)(1). Having reviewed the in camera hearing, we conclude the court properly denied Diaz's motion to reveal the identity of the confidential informant and to quash and traverse the search warrant. We also conclude the court properly applied penalty assessments to the drug program and lab analysis fees. However, we note these penalty assessments were not included in the abstract of judgment or the sentencing minute order. We direct the trial court to prepare an amended abstract of judgment that details the amount of and statutory basis for each imposed penalty assessment. In all other respects, we affirm the judgment.
DISCUSSION
The Court Properly Denied Defendant's Motions
Based on information from a confidential informant and surveillance by the Orange County Sheriff's Department, a search warrant was issued for defendant, his vehicles and residence, for methamphetamine, paraphernalia used in the packaging or sale of methamphetamine, and items related to narcotics transactions. A portion of the search warrant affidavit regarding the confidential informant was sealed. (Evid. Code, §§ 1040, 1041, 1042, subd. (b); People v. Galland (2008) 45 Cal.4th 354, 363-364.)
During the search of defendant's residence, three plastic baggies containing methamphetamine were seized from a metal overhang covering steps to the residence and a digital scale was found hidden underneath the residence. Inside defendant's residence, deputies found $2,000 in $100 bills and a check stub for defendant in a shirt pocket. After his arrest, defendant admitted using and selling methamphetamine but claimed the $2,000 seized by the deputies was legally earned.
Before trial, defendant moved for disclosure of the informant's identity. In a separate motion, he moved the court for orders: (1) to inspect the sealed affidavit supporting the search warrant; (2) to unseal any or all of the sealed affidavit; and (3) to quash and traverse the search warrant. The prosecution opposed both motions.
The court conducted an in camera hearing consistent with the procedures set out in People v. Hobbs (1994) 7 Cal.4th 948. During the in camera hearing, the court reviewed the public and sealed portions of the search warrant affidavit and received sworn testimony from the affiant, Deputy Davis, and Investigator Ledbetter as to why the sealed portion of the affidavit should remain sealed and whether the informant's identity should be disclosed. The witnesses were also questioned about potential misrepresentations in the affidavit or false information provided by the informant. The transcript of the hearing was sealed.
Following the in camera hearing, the court denied defendant's motion to quash the search warrant, finding there was probable cause for issuance of the warrant. In denying defendant's motion to traverse the warrant, the court found there were no material misrepresentations or admissions. Defendant's motion to disclose the identity of the informant was also denied.
On appeal, defendant requests we "review the sealed transcript and the sealed portions of the search warrant to determine if the court abused its discretion in denying [defendant] access to the informant's identity and denial of the motion to unseal the affidavit to permit [defendant] to seek to quash and traverse the search warrant." The Attorney General joins in his request.
We have independently reviewed the public and sealed portions of the affidavit and the sealed reporter's transcript of the in camera hearing. (People v. Martinez (2005) 132 Cal.App.4th 233, 241.) Based on our review, we have determined the disclosure of the informant's identity was unnecessary because the informant was not a material witness who could "have provided any evidence that, to a reasonable possibility, might have exonerated defendant." (People v. Lawley (2002) 27 Cal.4th 102, 160.) We therefore conclude the sealed attachment to the affidavit was properly sealed as information contained therein, if disclosed, could reveal the identity of the confidential informant. We also conclude the court properly denied defendant's motion to quash the warrant because the sealed and public portions of the affidavit set forth "'a fair probability' that contraband or evidence of a crime would be found in the place[s] searched pursuant to the warrant." (People v. Hobbs, supra, 7 Cal.4th at p. 975.) We find nothing in the sealed or public portions of the record suggesting any material misrepresentations or omissions by the affiant in requesting the search warrant. (Id. at p. 977.) Accordingly, we conclude the court properly denied defendant's motions.
The Court Properly Imposed the Penalty Assessments
At sentencing, the court ordered defendant to pay a $150 drug program fee (§ 11372.7, subd. (a)) "plus penalty assessment" and a $50 criminal laboratory analysis fee (§ 11372.5, subd. (a)) "plus penalty assessment." Defendant concedes the court properly imposed both of these fees, but he contends the court erred by adding penalty assessments to these fees under Penal Code section 1464 and Government Code section 76000. Both Penal Code section 1464, subdivision (a)(1), and Government Code section 76000, subdivision (a)(1), require a court to assess a penalty "upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses." (Pen. Code, § 1464, subd. (a)(1) [court shall levy a state penalty of $10 for every $10 or part thereof imposed and collected]; Gov. Code, § 76000, subd. (a)(1) [court shall levy a penalty of $7 for every $10 or part thereof imposed and collected].) Defendant argues these penalty assessments apply only to fines, penalties, or forfeitures and therefore do not apply to either the drug program fee or lab analysis fee because they are not "denominated as fines." Guided by our Supreme Court's decision in People v. Ruiz (2018) 4 Cal.5th 1100 (Ruiz), we conclude the court properly imposed penalty assessments on both the drug program and lab analysis fees.
Defendant raises this argument for the first time on appeal as he did not object to the penalty assessments in the trial court. We consider his appellate argument nonetheless because the erroneous imposition of penalty assessments is an unauthorized sentence that may be raised for the first time on appeal. (See, e.g., People v. Talibdeen (2002) 27 Cal.4th 1151, 1157 [concluding "erroneous omission of penalty assessments can be corrected on appeal even in the absence of an objection in the trial court].)
"Section 11372.5, subdivision (a), establishes a $50 'criminal laboratory analysis fee' for persons 'convicted of a violation of' specified statutes relating to drugs, including section 1137[8]." (Ruiz, supra, 4 Cal.5th at p. 1105.) Similarly, persons convicted of violating section 11378 are subject to a drug program fee not to exceed $150 under section 11372.7, subdivision (a). The natures of the drug program and lab analysis fees were at issue in Ruiz. There, the Supreme Court had to determine whether the Legislature intended these fees to be punishment or "'nonpunitive administrative fee[s]'" (id. at p. 1105), as the court considered the defendant's argument that the trial court had improperly imposed these fees on his conviction for conspiracy to transport a controlled substance (id. at p. 1104). After reviewing the language of section 11372.5, subdivision (a), the Ruiz court concluded "the Legislature understood and intended the 'criminal laboratory analysis fee' to be a 'fine' and a 'penalty.'" (Ruiz, at p. 1109.) The court reached the same conclusion after considering the language in section 11372.7, subdivision (a), for the drug program fee. (Ruiz, at pp. 1109-1100.) Because the Legislature intended these fees to be punishment, they were properly imposed for the defendant's conspiracy conviction. (Id. at pp. 1103-1104, 1119.) The Ruiz court declined to address whether the lab analysis fee and the drug program fee were subject to penalty assessments (id. at p. 1122), but it disapproved a line of appellate decisions that held these fees were not subject to penalty assessments because they were not fines or penalties (id. at p. 1122, fn. 8, disapproving People v. Martinez (2017) 15 Cal.App.5th 659; People v. Webb (2017) 13 Cal.App.5th 486; People v. Watts (2016) 2 Cal.App.5th 223, and People v. Vega (2005) 130 Cal.App.4th 183).
Defendant acknowledges the holding in Ruiz, supra, 4 Cal.5th 1100 but contends he has found nothing "in the legislative history of Health and Safety Code, sections 11372.5 and 11372.7 that suggests that they were intended to act as additional punishment" as opposed to fees "to directly support their intended target agency." While defendant may have found nothing in the legislative history, the Supreme Court did in Ruiz. Conducting an extensive review of the legislative history of sections 11372.5 and 11372.7 (Ruiz, at pp. 1110-1118), the Supreme Court found the Legislature intended the lab analysis and drug program fees to be "fines, penalties, and punishments" (id. at p. 1121) and rejected the defendant's assertion that the main purpose for these fees was to offset administrative or governmental costs (id. at pp. 1118-1119).
Consistent with the reasoning in Ruiz, we conclude the lab analysis and the drug program fees constitute fines or penalties as those terms are used in the penalty assessment statutes. Therefore, the trial court properly imposed penalty assessments on these fees under Penal Code section 1464 and Government Code section 76000. (See People v. Martinez (1998) 65 Cal.App.4th 1511, 1522 [concluding the lab analysis fee "is subject to penalty assessments under [Penal Code] section 1464 and Government Code section 76000"]; People v. Sierra (1995) 37 Cal.App.4th 1690, 1695 [same for the drug program fee].)
Although the court orally imposed penalty assessments on the $50 lab analysis fee and $150 drug program fee, the abstract of judgment does not show the imposition of any penalty assessments on these fees. Thus, we must remand the matter with directions to the court clerk to prepare an amended abstract of judgment that reflects the court's oral pronouncement of judgment and details the amount of and statutory basis for the penalty assessments. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate court may order correction of abstract of judgment that does not accurately reflect the oral judgment of the sentencing court].)
In addition to the penalty assessments under Penal Code section 1464 and Government Code section 76000 discussed ante, there are five more penalty assessments that can apply to both the lab analysis and drug program fees: (1) a state surcharge (Pen. Code, § 1465.7, subd. (a)); (2) a state court construction penalty (Gov. Code, § 70372, subd. (a)(1)); (3) an additional penalty for emergency medical services if authorized by the county board of supervisors (Gov. Code, § 76000.5, subd. (a)(1)); (4) a penalty "[f]or the purpose of implementing the DNA Fingerprint, Unsolved Crime and Innocence Protection Act" (Gov. Code, § 76104.6, subd. (a)(1)); and (5) a state-only penalty for the purpose of operating forensic laboratories (Gov. Code, § 76104.7, subds. (a), (b)). (People v. Sharret (2011) 191 Cal.App.4th 859, 863-864.)
When penalty assessments are imposed, either the court or the clerk must specify the amount of and statutory basis for each penalty assessment and each must be specifically listed in the abstract of judgment. (People v. Hamed (2013) 221 Cal.App.4th 928, 937-940; People v. Sharret, supra, 191 Cal.App.4th at p. 864; People v. High (2004) 119 Cal.App.4th 1192, 1200-1201.) In Sharret, the Second District Court of Appeal approved a procedure where the trial court orally imposed the lab analysis and drug program fees "'plus penalty assessment,'" and the court clerk was left with the responsibility of calculating each penalty assessment and specifying them in the minutes and abstract of judgment. (Sharret, at p. 864.) The Third Appellate District, however, has indicated a preference for the court to specify the penalty assessments in its oral pronouncement of judgment, stating: "Although we recognize that a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts." (People v. High, supra, 119 Cal.App.4th at p. 1200.)
Regardless of whether the court uses the shorthand "plus penalty assessment" or details the amount and statutory basis for each penalty assessment in its oral pronouncement of judgement, the clerk must specify the statutory basis and amount of each imposed penalty assessment in the abstract of judgment. (People v. Johnson (2015) 234 Cal.App.4th 1432, 1459; People v. Hamed, supra, 221 Cal.App.4th at p. 940; People v. High, supra, 119 Cal.App.4th at p. 1200 ["'a fine . . . is part of the judgment which the abstract must "'digest or summarize'"'"].) The abstract of judgment must specify the amount of each fine and penalty assessment so the Department of Corrections and Rehabilitation can "fulfill its statutory duty to collect and forward deductions from prisoner wages to the appropriate agency." (High, at p. 1200.) "[E]ven where the Department of Corrections has no statutory obligation to collect a particular fee,'" including all fines, fees, and penalty assessments in the abstract of judgment "'may assist state and local agencies in their collection efforts.'" (Ibid.)
Here, in its oral pronouncement of judgment, the court imposed penalty assessments on the lab analysis and drug program fees but did not specify the amount of or the statutory basis for each penalty assessment, thus leaving to the court clerk the responsibilities of calculating each penalty assessment and including them in the abstract of judgment. (People v. Sharret, supra, 191 Cal.App.4th at p. 864.) Unfortunately, the abstract of judgment includes no penalty assessments. Accordingly, we direct the trial court to prepare and file an amended abstract of judgment that itemizes the amount of and statutory basis for each imposed penalty assessment. (People v. Hamed, supra, 221 Cal.App.4th at p. 940.)
DISPOSITION
The trial court is directed to prepare and file an amended abstract of judgment that details the statutory basis for and amount of each penalty assessment imposed on the $50 criminal lab analysis fee and the $150 drug program fee. The trial court is further directed to forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
IKOLA, J. WE CONCUR: ARONSON, ACTING P. J. FYBEL, J.